The Court of Appeal has refused an application by three brothers to pause enforcement of a High Court judgment ordering them to pay Ulster Bank Ireland Limited €22,947,202.85 jointly and severally. The appeals against the High Court judgments and orders remain to be heard; the stay application did not decide those appeals.
In a judgment delivered on 23 November 2020, Ms Justice Costello said the brothers had not shown an arguable, bona fide ground of appeal. The court also considered the balance of justice on the assumption that an arguable ground existed and concluded that it favoured refusing a stay.
The dispute concerns a loan used to buy about 82 acres at Kilpedder, County Wicklow, for a proposed data centre. The High Court found that the brothers breached a 2013 compromise agreement with the bank. Among its conclusions, it found that a proposed sale to Granja Limited did not satisfy the agreement’s requirements and that the bank’s consent to the proposed sale had not been obtained. The High Court also found that the bank was entitled to seek the outstanding sums, subject to its ruling on the settlement with valuation firm CBRE.
The brothers argued that the bank’s €5 million settlement of its separate claim against CBRE reduced or extinguished their liability under section 17(2) of the Civil Liability Act 1961. Justice Costello said the Supreme Court’s decision in *Defender Limited v HSBC France* made clear that a settlement with one alleged wrongdoer did not automatically release another from all liability. The brothers had offered no evidence establishing the contributory negligence case against the bank that their argument required, she said. She held that this issue did not provide an arguable appeal ground.
They also argued that a 2013 Heads of Agreement with Granja was a binding sale contract and meant they had complied with the compromise agreement. Justice Costello said that even if the agreement was binding, the sale had not completed and could not be compelled: Granja was in liquidation, and its liquidator did not wish to complete the purchase. She concluded that this was not a bona fide appeal ground. She also rejected a separate argument based on a Supreme Court decision cited in the judgment as *Bank of Ireland v O’Malley*, holding that the case concerned summary proceedings while this case had been heard as a plenary action over 19 days.
On the balance of justice, the defendants identified possible bankruptcy as their prejudice if the stay were refused. The bank undertook not to begin bankruptcy proceedings on foot of the judgment pending the appeals. The court said receivers had twice lost possible sales of the land and could lose another if a stay kept a lis pendens in place. It refused the requested stay, including relief that would have prevented the land sale process from continuing. The court listed the matter for submissions on the motion’s costs on 27 November 2020.